AI Structured Summary
Not yet generated for this judgment
Judgment
P.D. Dinakaran, J.—Whether the appellant in writ appeal and the petitioners in respective writ petitions, who are alleged to be unauthorised
occupants of the lands, being the property of the Government, are liable to be evicted under the provisions of the Land Encroachment Act, 1905
(in short the ''Act'') is a question that arise for our consideration in the above batch of cases.
2.1. The writ appeal is preferred by a third party, viz. Sholinganallur Kumaran Nagar Pakuthi Vaal Makkal Nala Munnetra Sangam, a registered
body under the provisions of the Societies Registration Act against the order dated 13.7.2006 made in W.P. No. 21140 of 2006, preferred by a
company/fourth respondent in the writ appeal, which proposed to set up an industry for Information Technology Park of international standard in
the Cyber corridor established by the State at Sholinganallur Village, Tambaram Taluk, Kancheepuram District.
2.2. According to the writ petitioner in W.P. No. 21140 of 2006, adjacent to the land allotted to them, there are Eri and Periya Eri poramboke
lands (water bodies) in Survey Nos. 428 and 439 (Part) at Sholinganallur Village, Tambaram Kancheepuram District and the same act as a water
body for harvesting rain water around the catchment area. But, unfortunately, the said water body have been encroached by the unauthorised
occupants which compelled the petitioner in W.P. No. 21140 of 2006 to approach this Court seeking a writ of Mandamus directing the
respondents therein to forthwith remove the encroachments in Eri Poramboke lands situate in Survey Nos. 428 and 439 (Part) at Sholinganallur
Village, Tambaram Kancheepuram District and prevent any encroachment in future by appropriately protecting it.
2.3. The learned single Judge, after hearing the learned Government Advocate and based on the written instruction from the Collector, ordered the
said writ petition, as hereunder:
The statement made by the learned Government Advocate is recorded. The encroachment is said to be on the ""water body"" and it is also a
constitutional duty of every citizen to safeguard the ""water body"" under Article 51(A)(G) of the Constitution of India.
Therefore, this Court direct the respondents to remove the encroachment in Eri Porumboke lands situate in Survey Nos. 428 and 439 (Part) at
Sholinganallur Village, Tambaram, Kancheepuram District, after following due process of law in order to preserve the water body, as enshrined
under Article 51(A)(G) of the Constitution of India.
2.4. Aggrieved by the said order of the learned single Judge, a third party, viz. Sholinganallur Kumaran Nagar Pakuthi Vaal Makkal Nala
Munnetra Sangam preferred W.A. No. 1081 of 2006 on the main ground that the members of the Sangam are residing in the impugned land in
Survey Nos. 428 and 439 (Part) for more than thirty years and therefore, before evicting them, they are entitled for proper notice to explain their
case, as contemplated under the provisions of the Act.
2.5. The above writ appeal came for admission on 22.8.2006. However, the same was not admitted, but, stood adjourned from time to time. In
the meanwhile, the petitioner in W.P. No. 21140 of 2006 moved Cont.P. No. 1000 of 2006 for non compliance of the order dated 13.7.2006
made in W.P. No. 21140 of 2006, complaining that the Collector has not initiated any action to remove encroachments in Eri poramboke land
situated in S. No. 428 and 439 (Part) of Sholinganallur Village, Tambaram Taluk, Kancheepuram District. When the contempt came up for
admission on 3.1.2007, the learned Government Advocate took notice. As the respondents had not taken any action, statutory notice was ordered
to respondents on 23.1.2007.
2.6. By that time, four more writ petitions came to be filed. W.P. No. 27143 of 2006 was filed by Gandhi Nagar Residents Welfare Association
on behalf of 700 families for issue of a writ of Prohibition prohibiting the respondents from evicting the respondents from their respective dwellings
put up in the Schedule area, consisting of more than 700 families, without following the procedure established by law. W.P. Nos. 27144 to 27146
of 2006 were filed by individual occupants challenging the respective notices dated 27.1.2006 issued u/s 7 of the Act and the consequential
proceedings passed u/s 6 of the Act on the ground that they are residing in S. No. 439, Sholinganallur Village for more than sixty years and
therefore, the impugned land should have been classified as natham land and the Government should regularise the encroachment.
2.7. It is pertinent to note in this regard that even though the petitioner Sangam in W.P. No. 27143 of 2006 specifically claims that the impugned
land in S. No. 439 has been occupied by more than 700 thatched houses, they had furnished in the writ petition only the name and addresses of
240 persons. In W.P. Nos. 27144 to 27146 of 2006, where the notice issued u/s 7 of the Act and the consequential order passed u/s 6 of the Act
were challenged, the said petitioners contend that the Revenue Inspector has no authority to issue the impugned notice u/s 7 of the Act. Hence,
these writ petitions, writ appeal and the contempt petition were heard together and disposed of jointly.
Heard all the parties.
For the purpose of convenience, the appellant and the writ petitioners are referred to as the unauthorised occupants of the land, being the
property of the Government, which is not disputed by them.
5.1. With regard to the contention advanced by the learned Counsel for the appellant that the members of the appellant Sangam are residing for
more than 30 years in Survey Nos. 428 and 439 (Part) and therefore, they should not be evicted without any notice in compliance of the
procedure contemplated under the Act, it would be appropriate to refer to the order of the learned single Judge, wherein, the Collector was
directed to remove the encroachment in Eri poramboke in S. No. 428 and 439 Part, after following the due process of law, which includes the
compliance of the procedure contemplated under the provisions of the Act, viz. the issuance of a notice u/s 7 of the Act and holding a summary
proceedings.
5.2. On the other hand, the challenge made to the notice issued u/s 7 of the Act and the consequential orders passed u/s 6 of the Act in W.P. Nos.
27144 to 27146 of 2006 runs counter to the submissions made by the appellant, as the Collector had rightly issued a notice u/s 7 of the Act to the
petitioners in compliance of the direction of the learned single Judge, viz. to follow the due process of law before removing the encroachments in
the Eri poramboke.
5.3. Ponds, tanks and lakes are being used by the people, particularly in rural areas, for collecting rain water for the use of various purposes. They
form an essential part of the people''s natural resources. It provides proper and healthy environment. The encroachment upon such places by
unscrupulous persons have an adverse effect on the lives of the people. Therefore, it is imperative that such natural resources providing for water
storage facilities shall be maintained by taking all possible steps both by taking preventive measures as well as by removal of unlawful
encroachments. The legal bodies and the revenue authorities are under an obligation to protect the public properties and to remove the
encroachments. Of course, while doing so, the authorities are under statutory obligation to follow the due process of law, which has been rightly
taken note of by the learned single Judge, while giving appropriate direction in the order under appeal.
5.4. The Apex Court in Hinch Lal Tiwari Vs. Kamala Devi and Others, , has laid down the law relating to the maintenance of the ecological
balance in order to provide healthy environment and enable the people to enjoy the life guaranteed under Article 21 of the Constitution of India.
5.5. Following the decision of the Apex Court in Hinch Lal Tiwari case, a Division Bench of this Court in L. Krishnan Vs. State of Tamil Nadu and
Others, , where the Government land was encroached, viz. Eri poramboke or Periya eri poramboke (water bodies), directed the Government to
remove all the illegal encroachments from the water bodies, viz. ponds, lakes, eri and eri poramboke, which would adversely affect the lives of the
people, in order to maintain ecological balance, which is protected under Article 48-A of the Directive Principles of State Policy and cast a duty on
the State to protect and improve the natural environment under Article 51-A(g).
5.6. Concededly, the petitioners have encroached the impugned land, which is a water body. Even though it is now shown as a residential area for
the purpose of the guideline value, we are of the considered opinion that the same would not change the classification and character of the land as
per the revenue records. The unauthorised occupation by the encroachers in water body, viz. the area which is meant for public purpose goes a
long way in thwarting the goals sought to be achieved under Article 48A of the Constitution of India, referred to above.
5.7. Mr. K. Ilango, learned Special Government Pleader, appearing on behalf of the Government, on instruction, fairly concedes that the Collector
would adhere to the procedure contemplated under the provisions of the Act, viz. issuance of notice under Sections 5 and 7 of the Act before
passing an order u/s 6 of the Act strictly and also in conformity with the principles of natural justice. Hence, the only apprehension of the learned
Counsel for the appellant and the writ petitioners fails.
6.1. Incidentally, the learned Counsel for the appellant also contends that the unauthorised occupants are entitled to the benefit of G.O.Ms. No.
854, Revenue Department, dated 30.12.2006 for alternative accommodation. In our considered opinion, the same cannot be construed as a
promise by the public authorities, particularly when the Act empowers the authorities to remove the unauthorised occupants of the lands being the
property of the Government.
6.2. Once we disagree that there is any promissory estoppel on the part of the authorities either against the eviction proceedings or in favour of
providing alternative accommodation to the unauthorised occupants, the unauthorised occupants are not clothed with any legal right for
rehabilitation or seeking any alternative accommodation. The provision of alternative accommodation, therefore, is purely a policy decision to be
taken by the Government and decided by the authorities concerned. Whether the petitioners are entitled to or not, it may not be proper for this
Court to indicate anything in favour of the unauthorised occupants in the present proceedings.
6.3. At this point, it is pertinent to note that the Collector has stated that encroachments in water bodies were so rampant and it may not be
possible to chalk out rehabilitation scheme for all such encroachers and as there was a ban on assignment of land within 32 kms from the Chennai
city limit, it would not be possible to provide alternative site to these encroachers.
6.4. In view of the above, on receipt of the notice u/s 7 of the Act as to why they should not be evicted, the unauthorised occupants are at liberty
to submit their explanation objecting to the impugned eviction proceedings, placing reliance on G.O.Ms. No. 854, Revenue Department, dated
30.12.2006 and thereafter, it is for the Collector to decide on the claim of the unauthorised occupants and pass appropriate orders as
expeditiously as possible, in the manner known to law.
With regard to the other contention that the Revenue Inspector has no authority of law, we do not find any substance in the same, as the second
proviso to Section 7 of the Act makes it clear that the Revenue Inspector or any officer specified in that regard is also authorised to issue a notice
to the unauthorised occupants. Therefore, all the contentions advanced on behalf of the petitioners in W.P. Nos. 27144 to 27146 of 2006 fail.
That apart, we wonder how a writ of Prohibition is maintainable in law prohibiting the authorities, viz. the Collector who proposed to exercise
his lawful power conferred under the Act to remove the unauthorised occupants of the land, being the property of the Government. The prayer and
the relief sought for in this regard, in our considered opinion, is totally misconceived and also bereft of facts, as the contention that there are 700
families residing in the impugned land is untenable on the facts furnished by the petitioner in W.P. No. 21743 of 2006.
In the circumstances, we do not see any reason to interfere with the order of the learned single Judge nor any merit in the grievance much less
the relief sought for either by the writ petitioners or the writ appellant. Therefore, except to confirm the direction of the learned single Judge to take
appropriate steps to remove the encroachment in eri poramboke in S. Nos. 428 and 439 (Part), Sholinganallur Village, Tambaram Kancheepuram
District, of course, after following due process of law, in order to preserve the water body as enshrined under Article 48A and cast duty under 51-
A(g) strictly in accordance with law, viz. following the procedure prescribed under the Act and in compliance of the principles of natural justice, no
further order is required.
As the respondents have taken possession, we do not see any contempt, and accordingly, the same is closed.
In the result, writ appeal and writ petitions are disposed of. No costs. The contempt petition is closed. Consequently, M.P. Nos. 1 of 2006 in
W.P. Nos. 27143 to 27146 of 2006, M.P. Nos. 2 and 4 of 2006 in W.A. No. 1081 of 2006 are closed.